Defendants ignore the FACT that the town's response to them denied each and every aspect of Bruce McKay's personnel file, as did Counsel for Defendant's initial response. See their own Attachment of his 11 July letter to KingCast at para. 1. The fact that they produced the material weeks later (see 8 August letter to KingCast) does not moot the issue because declaratory judgment that the initial denials were unlawful is still available. For the Court to rule otherwise is to encourge the government to issue dilatory and unlawful responses, wait until a lawsuit gets drafted, then provide some documents and thereby avoid judgment.
That would be a scary decision.
Next, Para. 19 is fascinating because Defendants seek to employ the "we lost it so there's no violation of RSA 91-A" defense. Petitioner KingCast asked for the cruiser video of Sarah being OC Sprayed, which Attorney Troy Watts described in his email to KingCast, in which he also detailed a complaint he filed with Defendant Montminy. Defendants claim they don't have any of that so it's okay pursuant to RSA 91-A if they just lost it along the way somehow.
That would be a scary decision.
A finding by the Court that such malfeasance escapes the ambit of justiciability would give a green light for jurisdictions to selectively lose things, which I believe is exactly what happened here, or they are just lying. No way do you lose complaints and a cruiser video; they just don't want the World to see that video.
Similarly they then claim that they don't have the police reports or use-of-force reports for the 2003 arrest of Liko Kenney, as if the Court should say "it's okay fellas, have a Mulligan on me." But it doesn't work like that, or at least it shouldn't. Government has to be held accountable for not being able to produce documents and information that should be kept under lock and key, with the utmost of scrutiny.
And in so doing Attorney Mullen failed to address my question of whether the narrative at p.99 of the Investigative files KingCast hosted online is a police report or not. See it contains damaging statements that show that McKay violated the U.S. Constitution as an officer should have known at the time (according to Judge Cyr) so maybe they didn't want the World to know about that.
As to Defendant Montminy's excuses on RSA 91-A(4), he failed to meet his burden, which is succinctly described as follows:
"IV. Each public body or agency shall, upon request for any public record reasonably described, make available for inspection and copying any such public record within its files when such records are immediately available for such release. If a public body or agency is unable to make a public record available for immediate inspection and copying, it shall, within 5 business days of request, make such record available, deny the request in writing with reasons, or furnish written acknowledgment of the receipt of the request and a statement of the time reasonably necessary to determine whether the request shall be granted or denied." --
His response gave no timeframe for completion and mentioned overtime fees, which have no part of any RSA 91-A obligation. If Defendant wants to change the Law then he can petition his congressman. End of story. Judgment for Petitioner.
But actually there is more: Defendant Montminy lied about not having a police report or documents that would be responsive to KingCast requests from him to provide documents pertaining to Fox Hill Park being a "suspicious place." Read the comments section for comment #5 detailing how Defendant Montminy never gave me any of this information so he is in violation of RSA 91-A for several reasons, i.e. (1) inadequate timeframe provided (2) attempts to charge overtime (3) failure to provide responsive documents..... Matt Chernicki and I retrieved this information from the Courthouse....
Interestingly, in para. 15 it states that "Petitioner merely speculates that Officer McKay was unfit" and is therefore not entitled to review his personnel file and any notes that may indicate negligent hire, training or retention. Of course the State has lied about the number and types of complaints issued against McKay, and he clearly violated OC Spray and Use of Force policies on 5/11 (See Attachment__) but the main thing is that all of the reviews of his conduct and training and complaints (Vaughn TT and UU) are entirely redacted as will be noted shortly. Plaintiff will also note that he has filed Affidavits in regard to McKay being unfit, one from a criminal justice degree holder and one from someone who stated that Defendant Montminty told her McKay was indeed suspended for feckless behavior.
So Defendants have removed from public review the very documentation that could buttress the request for more documentation in light of what we DO know about McKay. And that of course would include the information in that narrative at pp. 99-101 where he admits to doing Unconstitutional things, among other things that I will delve into later, but I've only looked at their Motion for half an hour now but I will thoroughly dissect it over the next several days before issuing the KingCast response.
Okay, here's more than my speculation about McKay being unfit: Read comment #5 to see that "Ms. B," unanswered complaint (which the AG's office lied about not having) noted
"I went to Chief Montminy directly with my concerns and he asked me to put them in writing so I wrote the 13 page complaint, to which I never received any response. I told him my credentials include a BS in Criminal Justice, a teaching certificate and being an elected public commissioner..... I recommended he be sent to a certified psychologist for cognitive testing for communication and control issues... this could cause serious problems for officer McKay or Franconia."
Defendants next raise the issue of privilege, claiming that other relatives of McKay (none of whom have even filed an affidavit in this case, unlike Mr. Jesseman, who has filed one with KingCast) have a suffcient interest in prohibiting release of his personnel file. In so doing they ignore privacy court cases that Attorney Mullen has lost right here in New Hampshire and attempt to use a case I figured they would use, relating to Vince Foster's crime scene photgraphs of his dead body. Petitioner has not even sought those photos in this case and furthermore Vince Foster was not a police officer. It's a specious argument. Further, Petitioner reminds this Honorable Court that he seeks nothing "personal" but rather only issues pertaining to McKay's performance and the documentation on file clearly supports that assertion.
The last point on this issue is key, as Defendants attempt to lump items TT and UU together under Union Leader v. Fenniman, 136 NH 624 (1993). The problem with that is severalfold. First, Fenniman did not pertain to the training and testing files, it pertained to a citizen complaint that was ruled unfounded and as such did not become part of the personnel file. The Court stated
"Without further action, internal investigations of a police officer are not directly related to employment and do not constitute personnel records. As the trial court noted, inclusion of "not substantiated" complaints in personnel files would result in an accumulation of meritless claims that did not survive the investigative process.
But in this case there is an Affiant who stated that she was told by Defendant Montminy that McKay was indeed suspended for incompetent activity at Fox Hill Park, so that argument is baseless as well and Plaintiff is entitled to review the materials -- both the testing/review and the internal investigations -- in the manner contemplated by his proposal. Note that Defendant Montminy has not denied the factual allegations of said Affidavit. Public policy supports a full review of Bruce McKay's file given the misstatements about the number and types of complaints issued against him and the failure to respond to those that Defendants admit receiving. Without that review the town cannot heal in the manner contemplated by the remedial statute. That's why Ohio has open files, and performance review is expressly provided as noted in this public policy document submitted on prior occasion. As Petitioner noted in his Motion, are the citizens of the Live Free or Die State to enjoy less protections against bad policing than the folks in Cowtown, Columbus?
As to the 150+ responses to the Franconia Recovery and Reconciliation Committee, Petitioner has repeatedly noted that he might not pursue this issue, but he certainly had every right to anticipate that the Committee would honor its distinct and very public promise to provide the responses to Defendant Town of Franconia, and as such it was entirely logical and reasonable for Plaintiff to seek redacted copies of the responses. Plaintiff notes that State Rep. Martha McLeod, who has demonstrated contempt for Petitioner as noted in the Court file, has a husband who is a Defendant in this action as Franconia Selectman. That having been said, Petitioner withdraws this element of his Complaint, but only insofar as pending production of said responses should that ever happen. Court to maintain jurisdiction over this issue.
Lastly, as to Mr. Jesseman (who in frustration issued a sworn Affidavit to Petitioner as submitted) any reporter/Plaintiff has a right to have the Court declare whether the State's response to a public citizen violates RSA 91-A. While Defendants try to skirt the issue, there were TWO letters issued to them because they failed to respond to the first one. And when they did respond to the first one they failed to address items 1 through 5, which sought documents and information about McKay's police file and complaints issued against him since 2000 -- instead addressing only item 6.
As to Defendant's substantive assertion that it's okay that their responses were late because it's a small town. That's nonsense. New Hampshire is made up entirely of small towns just like Franconia, and they were even smaller when the law was enacted. There is no dual-tier of laws for large and small towns, there is just THE LAW. If Defendants don't like it they are entitled to approach their legislature, but until or unless that happens Plaintiff is entitled to Declaratory Judgment that
More on this later, and soon.